“Any Removal Proceedings” Includes IJ Review of Negative Reasonable-Fear Findings: The Third Circuit Recognises a Statutory Right to Counsel Under 8 U.S.C. § 1362

1. Introduction

In Adalberto Pino-Porras v. Attorney General of the United States, No. 22-3419 (3d Cir. June 25 2025), the United States Court of Appeals for the Third Circuit granted a petition for review, vacated an Immigration Judge’s (“IJ”) concurrence with a negative reasonable-fear determination, and remanded for further proceedings. Although formally labelled “not precedential”, the panel’s opinion—authored by Judge Freeman and joined by Judge Roth—lays down the most comprehensive appellate treatment to date of two questions that arise with striking frequency in the reinstated-removal context:

1. What constitutes a “reasonable opportunity” for a non-citizen to be represented by retained counsel at a reasonable-fear review hearing before an IJ?
2. Does the statutory “privilege of being represented” in 8 U.S.C. § 1362 extend to that hearing, which occurs after the reinstatement of a removal order but before any merits-based withholding-only proceedings?

The Court answered the second question in the affirmative, adopting the Ninth Circuit’s approach in Orozco-Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021), and designated the IJ’s refusal to afford a brief continuance for counsel participation an abuse of discretion. In parallel, the panel found that the IJ’s written decision was factually defective and insufficiently reasoned to permit meaningful judicial review, invoking the “meaningful-explanation” line of cases typified by Valarezo-Tirado v. Attorney General, 21 F.4th 256 (3d Cir. 2021).

2. Summary of the Judgment

• Outcome: Petition for review granted; IJ’s decision vacated; matter remanded.
• Holdings:
  1. The IJ’s factual findings lacked record support (erroneously stating petitioner was “part of a gang”) and failed to articulate a cogent nexus analysis, contravening the “substantial evidence” standard.
  2. 8 U.S.C. § 1362 applies to IJ review of negative reasonable-fear determinations, because such review falls within “any removal proceedings before an immigration judge.” Consequently, an IJ abuses discretion by proceeding where the alien’s retained counsel received no notice and time constraints would still have allowed counsel’s appearance.
  3. The matter was remanded to provide a record-based, reasoned decision and to afford Pino-Porras the opportunity to be represented.
• Dissent (Matey, J.): Would have granted the Government’s unopposed motion to remand without reaching the merits; considered the factual error harmless; and rejected a statutory right to counsel at reasonable-fear hearings, relying on Nasrallah v. Barr and Johnson v. Guzman-Chavez.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Valarezo-Tirado v. A.G., 21 F.4th 256 (3d Cir. 2021) – reiterated the requirement that an IJ’s findings contain “a meaningful explanation” supported by “specific, cogent reasons.” Here, the IJ’s reliance on an unsupported “gang membership” statement mirrored the defect corrected in Valarezo-Tirado.
• Freza v. A.G., 49 F.4th 293 (3d Cir. 2022) – provides the “fact-specific” abuse-of-discretion framework for evaluating denial of counsel participation. The panel applied Freza to conclude that the IJ should have continued the matter when counsel had not been served.
• Orozco-Lopez v. Garland, 11 F.4th 764 (9th Cir. 2021) – the only circuit precedent squarely addressing § 1362 in the reasonable-fear context. The Third Circuit expressly “agree[d] with the Ninth Circuit’s persuasive reasoning,” solidifying an emerging consensus.
• Nasrallah v. Barr, 590 U.S. 573 (2020) & Johnson v. Guzman-Chavez, 594 U.S. 523 (2021) – cited by Judge Matey in dissent to argue that reasonable-fear review is distinct from “removal proceedings,” but distinguished by the majority as not speaking to § 1362’s reach.
• Chlomos v. INS, 516 F.2d 310 (3d Cir. 1975) – an early decision condemning administrative scheduling without notice to known counsel; applied by analogy here.

3.2 The Court’s Legal Reasoning

(a) Substantial-Evidence Analysis

(b) Statutory Right to Counsel

1. Section 1362 grants a non-citizen the “privilege” of representation “in any removal proceedings before an immigration judge.”
2. Taking a textualist approach, the Court emphasised that “any” is “expansive,” citing United States v. Gonzales, 520 U.S. 1 (1997).
3. It further reasoned that removal of an individual under a reinstated order cannot occur until (i) removability is established and (ii) it is determined that no relief/withholding applies. The reasonable-fear review process directly addresses (ii); therefore, it is an integral stage of removal.
4. Because Congress used wide-ranging language and nowhere carved out reasonable-fear hearings from the privilege, § 1362 applies.

(c) Abuse-of-Discretion Finding

• The Immigration Court delivered hearing notice solely to the detention facility; counsel, despite having filed a Form EOIR-28, was not served.
• Five of the regulatory ten days for IJ review remained. A brief continuance would not have violated the time-bar and would have safeguarded statutory privileges.
• Consequently, denying a continuance deprived Pino-Porras of a reasonable opportunity for representation, constituting an abuse of discretion under the Ponce-Leiva/Freza standard.

3.3 Potential Impact

• National Uniformity: With the Third Circuit aligning with the Ninth, two major circuits now interpret § 1362 to extend to reasonable-fear hearings. Unless a conflicting ruling emerges elsewhere, agency adjudicators nationwide will likely afford counsel fuller participation to avoid petitions for review.
• Practical Consequences for Detention Facilities: ICE detention centres and EOIR will need revised notice procedures ensuring service on entered counsel, even under stringent timelines.
• Litigation Strategy: Practitioners now have a robust argument for continuances when counsel is absent, transforming what was historically a courtesy into a statutory entitlement.
• Substantial-Evidence Scrutiny: The opinion reinforces that, notwithstanding the streamlined nature of reinstated proceedings, IJs must issue factually accurate, fully-reasoned decisions. “Fast-track” does not mean “paper-thin.”

4. Complex Concepts Simplified

• Reinstated Removal Order: When a person already deported re-enters illegally, DHS can “reinstate” the old order without reopening the entire case, making that order immediately executable (8 U.S.C. § 1231(a)(5)).
• Reasonable-Fear Interview & Review: A screening process (similar to a credible-fear interview) to decide whether the individual may pursue “withholding-only” or CAT protection. Negative findings may be reviewed, on paper or in a short hearing, by an IJ.
• Section 1362 “Privilege” vs. Appointed Counsel: Unlike criminal proceedings, the Immigration and Nationality Act does not provide government-paid counsel. The “privilege” merely guarantees the opportunity to hire qualified representation at no cost to the Government.
• Substantial Evidence Review: An appellate court must sustain factual findings unless “any reasonable adjudicator would be compelled to conclude to the contrary,” but the findings still need to be anchored in the record.

5. Conclusion

Pino-Porras meaningfully clarifies two recurring procedural questions in the rehabilitated removal landscape. First, Immigration Judges cannot shortcut statutory and regulatory fair-hearing guarantees; their findings must cite record evidence and spell out nexus analyses, even in truncated proceedings. Second—and far more consequential—the Third Circuit joins the Ninth in holding that the “privilege of being represented” codified in § 1362 attaches to IJ review of negative reasonable-fear determinations. That construction of “any removal proceedings” is poised to reshape detention scheduling logistics, reinforce due-process safeguards, and, absent contrary authority from other circuits or the Supreme Court, become the de facto nationwide standard.

Note: Although captioned “Not Precedential” under 3d Cir. IOP 5.7, the opinion provides persuasive authority and is likely to influence both administrative practice and future appellate rulings until an en-banc panel or the Supreme Court addresses the matter definitively.